communities, created and existing upon the faith of the continuous use of the chartered powers, are interested; and, indeed, the life of the citizen as well as his property rights are thus jeopardized. Upon principle it would seem plain that railroad property once devoted and essential to public use must remain pledged to that use, so as to carry to full completion the purpose of its creation; and that this public right, existing by reason of the public exigency, demanded by the occasion, and created by the exercise by a private person of the powers of a state, is superior to the property rights of corporations, stockholders, and bondholders." It is stated in State ex rel. Railroad Comrs. v. Bullock (1919) — Fla. —, 8 A.L.R. 232, P.U.R.1920A, 406, 82 So. 866, that the public has such an interest in the operation of a common carrier railroad that, when once undertaken, it may not be discontinued by a proceeding in which the state is not represented, when such discontinuance has not been consented to by the state. This case is approved and followed in Anderson v. Dent (1920) Fla., 85 So. 151. In Talcott v. Pine Grove Twp., (1872) 1 Flipp. 145, Fed. Cas. No. 13,735, there is dictum to the effect that a railroad cannot be abandoned after it has become one of the thoroughfares of the country, and that the company will, by proceeding on behalf of the state, be forced to continue its road and perform all its duties to the public. A railroad company that has constructed and maintained and operated its road under powers and privileges granted it in its charter cannot thereafter, at its option, abandon the road. Farmers' Loan & T. Co. v. Henning (1878) 17 Am. L. Reg. (N. S.) 266, Fed. Cas. No. 4,666. The court says that, having entered upon the exercise of its charter franchises, it then owed a duty to the public which it might not, at its caprice, abandon; and further, that in equity and good conscience the obligation was still greater where the company had been the recipient of land grants and subsidies to aid in the construction of its road. In compelling a street railway com

pany by mandamus to operate its line of street railway, the court, in Potwin Place v. Topeka R. Co. (1893) 51 Kan. 609, 37 Am. St. Rep. 312, 33 Pac. 309, says: "By the provisions of the ordinance the rapid transit company obtained the right to construct its roadway in the public streets, to maintain and operate it, to transport passengers and parcels by means of electrical power, to collect charges and tolls therefor These privileges were not granted to the company solely for the company's benefit, but rather that the citizens of the plaintiff city might have the benefit of an improved mode of travel, that they might enjoy the benefit of one of the inventions of the age. By the terms of the ordinance the rights of the company were defined and its duties to the public declared. The company accepted the provisions of the ordinance and constructed its road under the leave thereby obtained. May it now disregard the obligations imposed on it by its terms? May it still encumber the streets of the city with its track, poles, wires, etc., and refuse to operate its road? It is said that the performance of only charter obligations can be compelled by mandamus,-that the charter of the defendant company does not require it to operate a line of railway in the city of Potwin Place.

Having accepted the rights and privileges conferred by the ordinance, we think the duty rests on them in favor of the plaintiff city and its citizens to render them the service for which the privilege was granted." In Burgess v. Brockton (1920) 235 Mass. 95, 126 N. E. 456, a case in which the revocation of the license for jitney busses was involved, the court, in arguing in favor of the revocation because of its interference with the income of the street railway company, says that "private property invested in the street railway has been in a sense devoted to a public use; that it cannot be withdrawn at the pleasure of the investors."

A railroad company which accepted a charter authorizing it to construct and maintain and operate a railroad at a time when a statutory

provision provided that the main track of any railroad, once constructed and operated, should not be abandoned or moved, cannot, after it has once constructed its tracks, remove the same. State v. Enid, O. & W. R. Co. (1917) 108 Tex. 239, 191 S. W. 560. To prohibit it from effecting the removal does not take its property without due process of law. The court says, with reference to the obligation of a railroad company which has accepted a charter such as above mentioned, that "the charter, when so issued and accepted, constituted a contract between the state and the railway company, and, like other contracts, its provisions and covenants are binding upon each party thereto; likewise they are binding upon the purchasers at receiver's sale, the defendants in error herein. Granting the charter by the state conferred a valuable right upon the railway company, but such right was not granted as a favor, but upon condition that the company would pay a valuable consideration to the state of Texas for the right granted to construct, maintain, and operate a railway between the towns of.

The permission to so construct the road and enter the railway business. was given by the state of Texas, and the consideration paid therefor was, by promise made to the state by the railway company, to construct, maintain, and operate the railroad. By the terms of the contract the state procured for its citizens the benefit to be derived by the public from the use and operation of the railroad. The courts cannot absolve the defendants in error from this duty. The courts enforce contracts, but cannot nullify them. . . Only by consent of the parties could the contract be modified so as to relieve the defendants in error from their obligation to maintain and operate the road, and not to move the track. . . . It may be as ably contended by the defendants in error that the courts cannot compel the operation of a railroad when it is financially unable to operate it. If so, the courts might refuse to require the operation of the road, which question we need not decide, but it would

not be on the ground that defendants in error have a right to refuse to discharge the duty resting upon them, to faithfully comply with their contract to operate the road, but would be because the courts are impotent to enforce the contract, on account of the insolvency of the corporation."

The obligation of the lessee of a railroad to maintain and operate the road during the term of the lease is a necessary implication where the road was built with the aid of county subscriptions to secure railroad connections with the county seat, and with the expectation of making the lease, which provided for such equipment as might be necessary to its use and enjoyment, and for applying the receipts to the annual expenses of running the road and keeping it in repair, then to reimburse the lessee for the annual rent, etc., although there was no express covenant requiring the operation of the road; consequently it was held that the lessee could not abandon the road. Southern R. Co. v. Franklin & P. R. Co. (1899) 96 Va. 693, 44 L.R.A. 297, 32 S. E. 485.

A city which continues to hold property appropriated for a water supply cannot refuse to supply water. Fellows v. Los Angeles (1907) 151 Cal. 52, 90 Pac. 137. This was an action to enjoin a city from shutting off water from flowing in a pipe to the plaintiff's premises, and to compel the defendant to furnish water to certain other premises belonging to the plaintiff; the court states that the question presented is whether or not, "under the circumstances of this case, as presented in the complaint, the city, after thus acquiring this water system, can now discontinue its operation, cease to furnish the water or any water to the persons theretofore receiving and entitled to receive it, from said system, retain title, possession, control, and management of all the property composing the system, and allow the water previously devoted to the public use. to run to waste." Answering the question, the court says: "It is clear that this cannot be allowed. If there are facts or circumstances which absolve it from the duty to continue the

water service, they must be shown in defense. The water, as we have seen, was appropriated to a public use, of which plaintiff was and is a beneficiary. The city cannot thus continue to hold and control property so appropriated to public use and at the same time refuse to perform the public duty which such possession and control imposes." Discussing generally the right of a corporation to abandon its business, the court says: "We do not mean to say that a corporation engaged in the distribution. of water to public uses may not abandon its property and quit the business without being subject to mandatory proceedings to compel it to continue to carry it on. It may find it impossible to go on. Its supply may become exhausted, or be insufficient for paramount needs; the rates fixed by law may be too small to enable it to operate at a profit, or without substantial loss; or it may conclude, without reason which the law would consider sufficient, that it will not continue. In case of a natural person it might become physically impossible. We do not intend to declare that, in any such case, mandatory process would be issued to compel the personal performance of the duty. These questions are not now involved, and we express no opinion concerning them."

See the reported case (LYON & HOAG V. RAILROAD COMMISSION, ante, 249).

It is generally held, however, that a public utility company may not be required to operate, where operation results in a loss. Brooks-Scanlon Co. v. Railroad Commission (1920) 251 U. S. 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183; Bullock v. Florida (U. S. Adv. Ops. 1920-21, p. 223) - U. S. - 65 L. ed., 41 Sup. Ct. Rep. 193; Jack v. Williams (1902) 113 Fed. 823, affirmed in (1906) 76 C. C. A. 165, 145 Fed. 281; Gilchrist v. Waycross Street & Suburban R. Co. (1917) 246 Fed. 952; Railroad Commission v. Saline River R. Co. (1915) 119 Ark. 239, P.U.R.1915E, 191, 177 S. W. 896; LYON & HOAG v. RAILROAD COMMISSION (reported herewith) ante, 249; State ex rel. Little

8

The United States Supreme Court has taken the broad stand that, "apart from statute or express contract, people who have put their money into a railroad are not bound to go on with it at a loss if there is no reasonable prospect of profitable operation in the future. . No implied contract that they will do so can be elicited from the mere fact that they have accepted a charter from the state, and have been allowed to exercise the power of eminent domain. Suppose that a railroad company should find that its road was a failure, it could not make the state a party to a proceeding for leave to stop, and whether the state would proceed would be for the state to decide. The only remedy of the company would be to stop; and that it would have a right to do without the consent of the state, if the facts were as supposed. Purchasers of the road by foreclosure would have the same right." Bullock v. Florida (U. S. Adv. Ops. 1920-21, 222) U. S. 65 L. ed. 41 Sup. Ct. Rep. 193. The power of the public service corporation to require a railroad which had a short line, and which did a very small business, to operate its road at a loss, was denied in Railroad Commission v. Saline River R. Co. (1915) 119 Ark. 239, P.U.R.1915E, 191, 177 S. W. 896, but this lack of power to require operation was held not to establish the railroad company's right to take up its rails, dispose of them, and abandon the road on its own motion. The court, in State ex rel. Little v. Dodge City, M. & T. R. Co. (1894) 53 Kan. 329, 24 L.R.A. 564, 36 Pac. 755, refused to order by mandamus a railroad company to repair and relay certain portions of its track and roadbed, where it appeared conclusively that the road could not be operated except at a loss, and the railway company was bankrupt. And it has been held that where the receipts

-

of a railroad are insufficient to meet its operating expense, operation at a loss will not be compelled, and it may be abandoned unless forbidden by the express terms of its charter, in the absence of special circumstances. Jack v. Williams (1902) 113 Fed. 823, affirmed in (1906) 76 C. C. A. 165, 145 Fed. 281. This theory furnishes the foundation for the, decision in Gilchrist v. Waycross Street & Suburban R. Co. (1917) 246 Fed. 952, where the power of the court upon a foreclosure proceeding to enter as a part of the judgment that the purchaser might abandon the road was sustained.

That a court of equity, having taken jurisdiction for the purpose of enforcing the performance of a contract to operate a street or interurban railroad, will retain jurisdiction for the purpose of authorizing the owner of such road to discontinue its operations, where no contractual obligation is found to exist, and there is no prospect that the road can be made to earn a fair return upon the investment, is held in Gress v. Ft. Loramie (1916) Ohio St. 8 A.L.R. 243, 125 N. E.

112.

A corporation which, in connection with its sawmill and lumber business, had operated a railroad on which it has done a small business as a common carrier, cannot be compelled to continue the operation of the railroad after it has ceased to be profitable, merely because a profit would be derived from the entire business, including the operation of the railroad. Brooks-Scanlon Co. v. Railroad Commission (1920) 251 U. S., 396, 64 L. ed. 323, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183. Such a compulsory operation of the railroad is held to be a taking of property without due process of law.

A coal mining company which, by its charter, is authorized to construct or purchase a railroad to enable it to send its products to market, the charter reserving at the same time to the citizens of the state and other companies the right to transport their produce over the road when built, may abandon the road or any part of it whenever the business of the company does not justify that it longer be

operated. And so it will not be compelled to maintain and operate the road for the benefit of other companies who have made connections with it. Montell v. Consolidation Coal Co. (1876) 45 Md. 16. This case involved the construction of the charters of two mining.companies, each containing similar provisions;. one, the charter of the company which originally built the road; the other, the charter of the defendant coal company, which purchased such road from that company, The charter of the first company "authorizes the company to construct or purchase a railroad leading from its mines to some point on the Chesapeake & Ohio canal, at Cumberland, to enable it to transport the produce of its mines and the produce of the counties through which its road should pass, to market, with a proviso reserving to the citizens of the state and other corporations the right to connect with its road if, in the opinion of the commissioners of Allegany county, or, by the amended charter, the commissioners of public works, no prejudice would be done by such connection to the road of the company." In construing this charter the court said: "Here, then, is a charter granted to a company for the purpose of carrying on the business of manufacturing iron and the mining of coal, with the right to build a railroad from its mines to the canal to enable it to send its products to market, reserving at the same time to the citizens of the state and other companies the right to transport their produce over the road when built, at certain rates fixed by the charter. So the question presented in this case is not whether any railroad chartered for the general purpose of transporting freight and passengers may, by its own election, and in order to promote its own interests, abandon or discontinue the use of part of its road, but whether the appellee, under its charter, or under the charter of the Cumberland Coal & Iron Company, both being primarily coal mining companies with the privilege of constructing a railroad from their mines to the canal, to enable them thereby to send their products to mar

ket, are bound to maintain and operate such road for the benefit of others who have formed connections with it, and irrespective of their own interests. It cannot be said that such an obligation is imposed in express terms by the charter of the Cumberland Coal & Iron Company. No provision is to be found in the charter requiring it to maintain and operate the road for the benefit of others, nor can such an obligation be fairly inferred. The charter is the contract between the state and the company, and in its construction we must be governed by the well-settled rules of interpretation applicable to all other contracts. Incorporated as a coal mining company, with the incidental privilege of constructing a railroad from its mines to the canal, we can hardly suppose the company accepted such a provision with the understanding that it would. be obliged to maintain and operate such road in all time to come, without regard to its business requirements, and irrespective of its own interests. Nor can it be said by any fair rule of construction, that a burden so unjust and unreasonable is imposed by its charter. So long as the company operated the road for its own use, in transporting to market the produce of its mines and lands, it was bound to carry the produce of other companies and of the counties through which the road passed. If its mines, however, became exhausted, or if the business of mining coal and manufacturing iron became unprofitable, or the best interests of the company required that it should abandon the road or discontinue its use, there is no obligation upon it to operate the road in the interest of others. The fact that the appellants made a connection with it by means of a tramroad, and built a dump house, and paid $200 for a right of way over its lands, does not in any manner affect the question. pellants did not thereby acquire a perpetual right to compel the company to maintain the road for their benefit. The declaration does not allege the $200 was paid for a right of way over the company's road, but was paid for a right merely over its land, 11 A.L.R.-17.

The ap

to connect with the road. In making a connection they knew, or are presumed to have known, that their right to transport freight over the road was subordinate to the paramount right of the company to discontinue the use of the road whenever its interests required it; and that the utmost they could claim by such connection was the right to transport their freight so long as the company used the road for transporting their own coal and produce." With reference to the charter of the defendant corporation, the court said: "Here, again, we find a coal-mining company authorized to build or purchase a railroad to enable it to send its coal to market, requiring it, at the same time, to transport persons and freight at the rates charged by the Baltimore & Ohio Railroad Company. There is not a line in its charter from which it can be inferred that the legislature, in granting it, intended to compel the company to operate this railroad one day longer than their own interests required it. On the contrary, it is plain that the power to build a railroad was conferred primarily for the benefit of the company, with the privilege reserved to others to send their products over the road so long as the company saw proper to use it for itself. If, however, their business no longer justified them to operate the road, or if they saw fit to adopt some other more convenient and less expensive mode of sending the products of their mines to market, they had the right to discontinue the use of it, and this, too, without incurring any liability to the appellants."

That the legislature has the power to consent to an abandonment is assumed in People ex rel. Hubbard v. Colorado Title & T. Co. (1918) 65 Colo. 472, P.U.R.1919A, 542, 178 Pac. 6, holding that a court has no jurisdiction, in foreclosing a mortgage on a railroad, to order its abandonment without the consent of the state or a public utilities commission to which this question has been delegated.

The theory has been followed in some cases involving gas and water companies that the duty of such com